Posted On by &filed under High Court, Karnataka High Court.


Karnataka High Court
Savithramma vs H. Gurappa Reddy Adn Others on 31 July, 1995
Equivalent citations: AIR 1996 Kant 99, ILR 1995 KAR 3389, 1995 (4) KarLJ 272
Bench: M Saldanaha


ORDER

1. The circumstances in which a Court will review a final decision are varied and in the course of numerous reported cases, many different facets of the law have been settled. The present case presents a slightly more interesting situation in so far as the present review application has been very stoutly resisted by the learned counsel who represents the parties to the original appeal in which that order was passed. The present applicant was admittedly not a party to that proceeding and is therefore labelled as a stranger. The applicant contends that she ought to have been a party and that as a result of the final order passed in the appeal, that she is seriously prejudiced and that therefore she has every right to claim a review of that decision. Her contention is also that this is the appropriate remedy and that the circumstances in which the earlier order was passed are (sic) manifestly unfair. There is a direct charge to the effect that fraud was played on the Court in the earlier proceeding; that this was deliberately done and that the action was accompanied by mala fides. The learned counsel who represent the original parties have stoutly resisted this allegation and I shall presently point out, it is their case that nothing of the sort had been done and that the compromise that was presented to the Court was in circumstances that would pass the scrutiny of any judicial forum. The controversy is not very limited in so far as this litigation was preceded by certain other ones to which a brief reference will be necessary and, therefore, the issue involved therein also ought to have some consequence. In sum and substance, the present applicant has prayed for a restoration of the status quo ante unlike in the majority of review petitions, whereas the respts, have seriously opposed the grant of this relief which is why the matter will have to be decided in the light of the issues that have been canvassed.

2. It would be advisable to briefly summarise the background that has given rise to this proceeding.

3. The applicant before me, Savithramma is one of the daughters of Kalappa Reddy. After his death in 1983, Bhagyamma

one of the daughters brought a suit for partition and possession of her 1/7th share in respect of the estate of her father. There were various pieces of property involved and ultimately, a compromise decree was passed in OS.3939/83. One of the properties that came to the share of Savithramma, the present applicant, and in fact the only one with which we are concerned in this application is site No. 2 which is demarcated in the sketch. It is relevant to point out, that the adjoining Site No. 3 came to be allotted to the three brothers. Another aspect of the matter which is of some consequence is the fact that to the East of these properties, lies the property of one Gurappa Reddy and it is relevant to also mention that at the time when the compromise decree was passed in the year 1984 that Gurappa Reddy is alleged to have laid a claim and in fact encroached upon certain portion of both these sites Nos. 2 & 3. The sketch indicates that this encroachment consisted of a triangular portion of land, the larger part of the triangle lying in the site No. 3 and the narrow part of it lying in Site No. 2. Subsequently Gurappa Reddy had filed OS 3065/80 in the Court of the 14th Addl. City Civil Judge, Bagalore for declaration of title and possession and he had claimed the whole of sites Nos. 2 & 3 which formed part of Survey No. 8. His case was that his father had purchased this land under sale deed dated 29-7-1925. The trial Court had dismissed this suit on 27-7-1982. Gurappa Reddy had gone in appeal against this decision by way of R. F. A. No. 18-83. Katappa Reddy was alive at the time when R.F.A. 18/83 was filed but he died shortly thereafter. After his death, his widow Revamma and two sons namely A. K. Chandrashekhar Reddy and A. K. Purushothama Reddy were brought on record. According to the present applicant, who is one of the daughters of Kalappa Reddy, she was totally unaware of this litigation in which the compromise was arrived at on 29-3-1984. It is his case that shortly after the compromise was filed in the Court, orders were passed on 29-3-1984 in her absence, and without her knowledge, that she came to know about it and that therefore, she applied for setting aside of that

order. It may be stated here that her principal grievance is not merely to the effect that she ought to have been made a party but that according to her in the compromise, a substantial portion of site No. 2 has been conceded to Gurappa Reddy and in sum and substance she contends that the property which had become hers by virtue of the decree passed in the year 1984 has been given away by the respts. to that appeal who are her family members, without her knowledge and to her prejudice. A serious allegation was made that her family members had colluded with Gurappa Reddy and given away part of her valuable property and in the light of this allegation, it was contended that with this objective in mind, she had not been made a party to that appeal which virtually ought to have been done.

4. The learned single Judge of this Court disallowed the application for setting aside of that order principally on the ground that if the present applicant was aggrieved by the consequences of that order, that the correct procedure would have been to file a review application or petition which had not been done. The learned single Judge however made several strong observations in that order practically accepting the position that a fraud had been played on the Court and he granted two months time to the present applicant to file a review petition if she so desired. It is pursuant to that order that the present review petition came to be filed. In the meanwhile, the order of the learned single Judge was challenged through a S.L.P. before the Supreme Court. The Supreme Court through a short order dt. 26-10-1993 observed that the review petition should be decided by the High Court stricly on merits dehors any influence ont he Court by vritue of any of the observations made by the learned single Judge. The review application has thereafter been placed on board for hearing and the applicant’s learned advocate has advanced his submissions in some detail both on points of fact and on points of law. He has been strongly opposed by the learned counsel, representing the original parties in the earlier R.F.A. and I need to record that all the three learned counsel have virtually done an exemplary job in the course of their submissions.

5. As indicated by me, the principal contention advanced on behalf of the applicant is that she was a necessary party to the appeal after the death of the original deft, who was the respt. in that appeal. The applicant is the daughter of late Kalappa Reddy who had died during the pendency of the appeal and an application for bringing on record the legal heirs was filed by Gurappa Reddy. That application was granted pursuant to which the wife and two sons were brought on record. The grievance projected before me is twofold. The first of them being that it was not an empty formality but that this applicant was a very necessary part) because, after the passing of the decree in 1984, the appellant Gurappa Reddy was staking his claim to rights in respect of sites No. 2 and 3 out of which, site No. 2 had come to the share of the applicant. The contention is that the fate of that property namely site No. 2 was directly in issue in the appeal and that, therefore, quite apart from being a necessary party for virtue of her status as the late Kalappa Reddy’s daughter and legal heir, that more importantly she was required to be impleaded in her own right because it was her property that was being claimed by the appellant. The applicant’s learned counsel submitted that it is a requirement of law that on the death of a particular party, the legal heirs have to be brought on record and that requirement gets further reinforced by the fact that in the present case the applicant had a direct and personal stake in the litigation. He therefore submitted that for whatever reason, if orders had been passed in that appeal without the applicant having been heard, that the orders will have to be set aside. The learned counsel has relied on certain decisions in support of his contention. The first of these is the decision of the Federal Court reported in AIR 1949 FC 195 in the case of Tirtha Lal Day v. Sm. Bhusan Moyee Dasi.

In that case, a partition had taken place of certain property ami an award came to be passed in the absence of the deceased widow. The Court held that the order would have to be set aside as she was a necessary party and that the decision taken without notice to her was not sustainable. I need to record here

that one of the arguments canvassed in the case was that since the sons were represented that there was adequate and substantial representation of the widow. The Court took note of the fact that in situations of this type particularly where the interest could be conflicting, that such a situation was not tenable. The next decision relied on is the case reported in AIR 1956 Trav-Co 147 (FB) in the case of Chacko Pyli v. Lape Verghese. The Court was on this occasion concerned with an application for setting aside and the question arose as to whether while doing so, it was possible to pass a piecemeal order. Analysing the law on the point, the Court held that it was permissible in certain cases but that in the first instance legal representation was not of the type as contemplated by law, that the order passed would not hold good as against one of them. In this case again, the Court had occasion to examine the defence of substantial representation and the Court observed that such substantial representation though permissible, could not hold good as defence in all cases unless there was adequate material before the Court to show that the representation was not only by complete authority of the person but also that the interest of that person was sufficiently safeguarded. In the present instance, the principal allegation of the applicant is that her mother and brothers were not competent to safeguard her interest and that they in fact did not do so. There is a direct charge of collusion and the allegation is that the interests have been jeopardised and that she was deliberately not made a party in order to sacrifice a part of her land while saving the land of the respt. I shall deal with this aspect of the matter at a subsequent stage when I come to the arguments advanced by the respts’ learned counsel. The applicant’s learned counsel has thereafter drawn my attention to a.decision of the Supreme Court in the case of Daya Ram y. Sham Sundari wherein the Supreme Court had occasion to deal with the provisions of Order 22 Rules 4 and 11, CPC. In that case, the contention raised was that the plaintiff after a diligent search and enquiry had brought on record those of the legal heirs whom he bona fide considered to be the only

legal representatives of the deceased. The Court had occasion to observe, that in situation such as this, the decree could bind all the legal heirs and, therefore, that it was the duty of the Court when it was pointed out that all the L.Rs. are not on record to ensure that all of them were in fact impleaded. The applicant’s learned advocate has contended that undoubtedly, the other side would submit that it is open to his client to point out before any of the competent forums that the compromise decree passed in the appeal does not bind her as she was not a party thereto and if so advised to take appropriate steps, quite apart from the inappropriatness of this remedy through further litigation. He further submitted that there is an inherent danger in this argument in so far as in a given situation it would be permissible for a Court to hold that the present applicant was bound by the decree in so far as her mother and brothers were parties before the Court and it could therefore be contended that they were representing her. He has pressed forward these arguments in support of his contention that there is no alternate remedy available. The principle enunciated by the Supreme Court however, in this decision was that it is absolutely essential that each and everyone of the L.Rs. of the deceased litigant must be brought on record. In that proceeding, the question before the Court was slightly different, namely as to whether, if after diligent search only some of the LRs. were impleaded, whether it could still be argued that the order passed in such a case would be vitiated. We are not really concerned with that aspect of the matter in the present proceeding.

6. I need to mention here, that quite apart from the aforesaid aspect of the matter which the applicant’s learned counsel contends is fundamental and is sufficient for him to seek an order of review of the compromise decree, that he has pressed the subsidiary argument that it is well settled law that an order obtained through unfair means or by practising fraud is basically a still born order, that therefore the order itself is non est and that this Court must restore the appeal to life and direct that it should be heard on merits. In support of this argument, he has sought to hammer home two significant aspects of the

matter. Firstly he contends that the family members who arc represented in the appeal namely the applicant’s mother and brothers knew of her existence and more importantly knew of the fact that she was the person to whom site No. 2 had gone and the person who was in fact the owner of site No. 2 which was the subject of the dispute in that appeal. He, therefore, submits that it was very much to the knowledge of the respts. in that appeal that the present applicant must be impleaded. As far as the appellant is concerned, his charge is that he is the adjoining property owner, that he contends that a transaction of the year 1925 gave him certain rights in respect of that property and that having regard to the totality of the circumstances on record, it was impossible for him to even contend that he was not aware of the existence of the present applicant. It is in this background that a direct allegation has been made that in the first instance, the parties before the Court had colluded with each other and the learned counsel goes to the extent of submitting that it is his considered “view that the appeal itself was devoid of substance, the suit having been dismissed by the trial Court and that in this background, there was virtually no justification for even considering any compromise formula and to give away the property. Secondly, what is submitted by him is that the present applicant was deliberately not cited as a party respondent because under no circumstance would she have agreed to give away a part of her land and in order to hustle through the compromise, the parties had virtually joined hands and recorded the compromise behind the back of the present applicant. In sum and substance, there are a series of allegations of considerable seriousness which have been levelled on the basis of which the learned counsel submits that the compromise decree passed on the basis of misrepresentation and fraud would straightway be vitiated. He submits that if that is so, it is unnecessary for the Court to go into any other aspects regarding the scope of a review because this Court should temporarily restore the appeal to file after holding that in this situation, the earlier order is non est.

7. On facts, respts, learned advocates have

taken serious exception to the allegations of fraud and misrepresentation. It is their case that Gurappa Reddy was laying claim to the whole of both the plots of land Nos. 2 and 3. According to them, Gurappa Reddy hail lost before the trial Court and his appeal had been admitted by the High Court and he was hopeful that the appeal would be allowed in its entirety. Kalappa Reddy was no longer available to defend that litigation and his widow and sons who are before the Court, rather than facing the uncertainty of a decision on merits preferred to negotiate the matter and arrive at a negotiated settlement. Learned counsel submits that had the appeal been heard, one of two decisions would have resulted in so far as either the whole of that land would have gone to Gurappa Reddy or he would have lost competely. According to them, they felt that it was more prudent to negotiate the matter and arrive at a compromise formula whereby the dispute was resolved almost on a half and half basis. It is their contention that the present applicant is a married daughter, she was not residing there and according to the learned counsel who represents Gurappa Reddy, the widow and two sons were brought on record in so far as they were under the impression that these were the real people who represented the assets of the deceased. The learned counsel who represents those of the LRs. who are on record states that the question as to whether the Site No. 2 had gone to the share of the present applicant or not was wholly irrelevant and was a subsidiary issue because the decree of 1984 continues to be a paper decree even as of today. The decree was signed several years later and it has never given effect to in sum and substance. Therefore it was a question of defending a part of the asset of the late Kalappa Reddy and there was no question of considering in piecemeal interest of any of the sharers. The cumulative effect or impact of the submissions canvassed is that the compromise was entered into bona fide and in good faith with no intention to harm anybody’s interest and in this background that it was very wrong on the part of the applicant to make allegations of misrepresentation and fraud.

8. In need to dispose of this aspect of the matter which 1 propose to do on a very clear cut consideration. The position that emerged was that after the death of Kalappa Reedy, it was necessary that the legal heirs be brought on record. The wife and the sons were infact impleaded and it is true that the remaining family members were not impleaded, particularly the four married daughters. The position would have been entirely different if the remaining family members were impleaded and only the present applicant was not in which case there might have been some basis for the allegations that have been made. Furthermore, what needs to be stated is that the matter came to be negotiated and it is impossible for any court to attribute dishonesty, mala fides or any other such imputations to the parties in the absence of very strong and cogent material. To my mind, had the matter been compromised in a manner whereby only the land belonging to the present applicant was conceded to Gurappa Reddy, there might have been some warrant for the allegations. On an examination of the facts, I find that an even larger portion of the land belonging to the other heir has been made a part of the compromise. This clearly indicates that there was neither any hostility, illwill nor any form of involvement but that the negotiation for whatever it was worth, was carried on and that it was according to t,he best judgment of the parties who were before the Court at that time that the compromise was carved out and recorded. It is a well settled law that even within the province of civil litigation when an allegation of misrepresentation or fraud is made, that the level of proof required is extremely high and is rated on par wiih a criminal trial. On the basis of the material before the Court here, it would therefore be impossible to uphold the charge that the compromise decree stood vitiated on grounds of either misrepresentation or fraud. To my mind, therefore that contention cannot be upheld.

9. The learned advocate who represents the other legal heirs, Mr. Shankar has submitted that the circumstances and the ground on which a Court is permitted to review a decision are well defined and well circum-

scribed. In support of this contention he has drawn my attention to a few of the cases which 1 shall refer to briefly. Firstly, he relies on a decision of the Supreme Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale. That was a case in which the aspect of error apparent on the face of the record had been considered and the Supreme Court had occasion to rely on two of the earlier decisions as also the observations in . Mr. Shankar submitted that before asking for a review, it would be necessary for the applicant to demonstrate that there has been an error apparent on the face of the record which is not the case here in so far as that has not even been pleaded. Secondly, the learned counsel has relied on another decision of the Supreme Court , in the case of M/s. Thungabhadra Industries Ltd. v. The Govt. of Andhra Pradesh. That was a case in which the Court had occasion to consider the subtle distinction between an erroneous decision and a decision which is vitiated by error apparent. Whereas a review is permitted in the latter, it is completely barred in cases of the former. Mr. Shankar submitted that if the compromise decree is bad on merits, that the law provides several avenues available to the present applicant and that the review petition is not a proper remedy. Thirdly, Mr. Shankar relied on an earlier decision of the Supreme Court reported in AIR 1954 SC 526 in the case of Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasins wherein the Supreme Court had occasion to consider the wording in O. 47, R. 1 of the clause viz. very sufficient reason. On the basis of the decisions reported in AIR 1922 PC 112, AIR 1934 PC 213 and AIR 1949 FC 106, the Court went on to hold that it is necessary, where a review is sought on these grounds to demonstrate that the grounds are substantial, that they are real, that they are cogent and that, there is enough material on that basis to contend that the decision would have been otherwise. In sum and substance, what the learned counsel submits is that it is insufficient to merely contend that the applicant ought to have been

made a party without demonstrating that had the applicant been before the Court, with enough material both on facts and in law in her possession on the basis of which, the result in that appeal would have been other than the present one. As far as a compromise decree is concerned, by implication, this argument means that if the present applicant contends that she ought to have been a party, she would have to demonstrate that had she been before the Court, that she would have been able to, on the basis of factual and legal material not only oppose the compromise but ensure a decision whereby in the final verdict, no amount of her property would have ended up with the appellant. In other words, what is contended by the learned counsel is that a mere averment that had I been before the Court, 1 would not have agreed or that the decision would have been otherwise is insufficient because it is necessary to demonstrate cogently that this would have been the position and in the absence of any such exercise, that the review itself is not competent. The last submission advanced by the learned counsel is that at the time when the litigation was pending, the family had taken a decision to once and for all put an end to the conflict and since the appellant appeared to be able to demonstrate that he had a semblance of a right, that the learned advocates and the clients were of the view that it was far more judicious to compromise the matter which was why a compromise was entered into. Significantly enough, the learned counsel who represents the heirs points out that as far as his clients were concerned, they genuinely believed that through the compromise they were in fact saving half of their property rather giving away a portion thereol and they felt that this was a prudent, correct and a safe step.

10. The learned counsel who represents the other contesting respt. namely Gurappa Reddy has submitted that in the first instance, where it is open to the present applicant if so advised to take out separate proceedings for a declaration that the decree does not bind her, that she should not be permitted to reopen the present litigation. He contends that it is impossible to accept the argument that the

applicant was unware of the litigation and he relies heavily on the fact that very shortly after the decree was passed, in fact within a period of only 29 days an application for setting aside had been filed. He also contends that after the death of the applicant’s father, since she was fully aware of the fact that his client was claiming a portion of the site No. 2 on which he is alleged to have encroached but more importantly since she was aware of the fact that there was a threat to site No. 2 that it was imperative for her to have come forward and defended the litigation. He submits that in so far as she has not done so, that she would be estopped from challenging the present compromise decree.

11. There is another argument which has been canvassed namely the fact that the review petition as of necessity ought to be heard by the same forum which passed the original order namely by the same learned Judge. It is true that the general principle, for very good reason, is that a review must always be heard by the same Judge or by the same Court but there are situations in which this is not possible particularly where the same judicial officer is not available and in these situations it is well settled law that any other Court of concurrent jurisdiction can hear the case. This objection is therefore overruled. The next ground on which the appellant’s learned advocate has contended is that the present applicant should be debarred from reopening the matter on the ground of limitation. The submission is that a review petition is required to be filed within the period prescribed by law and that admittedly, this petition has been filed much later. About the point of time at which the review petition has been filed, there is no dispute. The learned counsel submitted that if at all the applicant desired a review of the original compromise decree, that a review petition ought to have been filed straightway. In the first instance, an application for setting aside was filed and that was agitated for a considerable period of time and it was only after the disposal of that application that the present review petition has been lodged. The applicant’s learned counsel was quick to point out that after the earlier decision on his application for setting aside by the learned

single Judge, that he was given two months time to file the present review and he had done so well within that period. The submission canvassed against him is that after the period of limitation for filing of the review petition as prescribed by the law of limitation had elapsed, that the Court was not competent in extending that period even by a single day and therefore the filing of this review petition within the period of two months granted by the learned single Judge is of no consequence. The learned counsel submitted that the Limitation Act empowers a Court of competent jurisdiction at the very highest to condone delay in appropriate cases but there is a complete bar as far as extending the period of limitation is concerned. Hesubmitt-ed that it is for this reason that he is raising this plea and he prefixed his argument with the submission that according to him, the present applicant is merely litigating for certain other reasons and that therefore, such an effort must be beaten down.

I do not dispute the correctness of the submission that a Court is entitled to condone the delay but that a Court cannot extend the period of limitation but there is an equally valid principle namely that if a party has prosecuted a wrong or incorrect remedy, that the time spent in the course of prosecuting that legal remedy is required to be excluded while computing the bar of limitation. It is on the basis of the application of this principle, that the learned single Judge earlier granted the applicant a period of two months which was the original time limit prescribed for the filing of the application, because the Court came to the conclusion that the applicant had been prosecuting a wrong remedy. Under these circumstances, the correct view in law would be that the present review application will have to be held to have been filed in time and therefore no bar of limitation can come in the way of the present applicant.

12. On behalf of the respt. Gurappa Reddy, one other objection was canvassed which was to some extent submitted by the other learned advocate who represented the other respt. This was to the effect that the present applicant was not a party to the original proceeding and therefore cannot seek a review. The submission basically proceeds

on the footing that a review is necessarily confined to the parties to the original proceeding and that it is not open to a “stranger” to the proceeding to seek a review. Under normal circumstances, I would have straight-way upheld this objection because it is well settled law that however much a third party may be interested or affected by a litigation, that such intervention would not be permissible by way of a review petition at a post decisional stage. However, in this instance the position that emerges is slightly different. What is contended by the applicant’s learned advocate is that she was one of the necessary parties and ought to have been one of the parties before the Court and that, the order affects her and therefore the application is not merely technical or academic. To this extent, a distinction will have to be drawn, though a very subtle one, on the unusual facts of the present case whereunder, the applicant cannot be categorised as an absolute stranger having regard to the complexion of the matter. Under these circumstances to my mind, the objection which would have otherwise been upheld cannot be treated as a bar to the present review petition.

13. In the course of his reply, the applicant’s learned counsel drew my attention to a recent decision of the Supreme Court reported in (1993) 5 JT 27 in the case of S. Nagaraj v. State of Karnataka wherein the Supreme Court has observed (paras 18 and 19) :-

  " Review literally and even judicially means re-examination or    re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decisions legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice ..... 
Rectification of an order thus stems from the

fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed and substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Art. 137 of the Constitution. And clause (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII, Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and adecree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of the process- of court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice.”

14. The law as expounded by the
Supreme Court is quite explicit but the learned advocate drew my attention to the specific fact that the ground on which the Supreme Court proceeded in this case was principally provided for by the rules that have been promulgated by the Supreme Court. In the present case, the situation is entirely different and, it is contended that on facts no case is made out but that even when considered on the touchstone of the aspect of doing complete justice to the party, that there is one feature which the Court will have to take into consideration. The respts learned advocate contend that this is a matter where the applicant is no stranger to litigation before the City Civil Court and is a beneficiary of a decree passed in a judicial proceeding. They also submit that the appli-

cant was conscious of the fact that there was a dispute pending with regard to encroachment by Gurappa Reddy in respect of site No. 2 which land is allotted to the share of the applicant. The learned counsel, principally on the basis of the specific reference in the pleadings and in the decree of 1984 to the encroachment by Gurappa Reddy contend that it was incumbent on the part of the applicant to have been vigilant about her rights and they also contend that if the applicant is still desirous of agitating them, there are legal remedies available. Relying on the earlier decision of the Supreme Court referred to in AIR 1963 SC 1969 (sic) which I have had occasion to mention, the learned counsel vehemently submitted that the applicant is misusing the review provisions and should not be permitted to do so. They have reinforced this argument by submitting that under normal circumstances the Court would not perhaps shut out an applicant who prays for a review because such an order would preclude the party from obtaining a relief in any other appropriate proceeding the reason being that the order completely binds that party. They submitted that in this case the order does not bind the present applicant and where a straight remedy is available if she is genuinely interested, that a review petition ought not to be entertained. It is their addt. contention that since the matter is seriously contested, that a resolution of the dispute cannot be done merely on the basis of the pleadings of the parties since there are allegations of fraud on one side and inaction on the other side and that therefore the only appropriate forum would be a fresh suit wherein the court would go into the overall evidence even in respect of these heads.

15. As far as the question of alternate remedy is concerned, I do concede that the respts. learned advocates are right about the fact that the applicant does have an alternate remedy. Had this been a writ petition, the availability of that avenue would have prescribed a complete legal bar. In the present case, the applicant has been chosen to adopt that course of action but has approached the court through the present review petition. The question therefore arises as to whether on

the facts of this case, the existence of the alternate remedy would preclude the relief in this petition. While considering this aspect of the matter, I need to refer to the last of the decisions which the applicant’s learned advocate relied on, namely the decision in the case of N. Gopal. In that proceeding, on the death of the original landlord a compromise was entered into between his son and the tenant without taking the court into confidence about its binding character on the co-landlord who was the daughter. The court held that the compromise would be void ab initio and that the order was liable to be recalled. I he applicant’s learned advocate has in substance, contended that present applicant has to be distinguished from a mere person who may be affected by the consequences of the order passed by the court and the special fact that by virtue of the compromise entered into in a proceeding in which the law necessitated her being shown as a necessary party, that she stands to lose part of her property. It is on this aspect, that he hammered home the point that in the instant case if the applicant was a necessary party as prescribed by law and secondly, if the damage done to her was real and tangible, that the order passed in the original proceeding itself would stand vitiated. The learned single Judge in the last decision referred to by me has held that the order would be void ab initio the obvious reason being that on the facts before the court in that proceeding, the learned Judge was of the view that it was obtained on the basts of unfair tactics and by suppression of vital material from the court. In other words, the order was vitiated by fraud and that too in a judicial proceeding, and therefore as a necessary consequence had to be recalled. In the present case I have already held that the material before me is not sufficient, nor do the circumstances justify the finding that the order is vitiated by fraud. 1 am conscious of the fact that there is a direct allegation to this effect but i have already held, for the reasons earlier stated that the allegation of fraud cannot be said to have been established. However, the position still remains that the appellant before the court in that proceeding

was obliged by virtue of the provisions of the C.P.C. to have brought on record the legal heirs of the deceased Kalappa Reddy after his demise. Whether the legal heirs decide to participate in the proceedings or not is a question of their choice but the law enjoined on the appellant the obligation to cite before the Court all the legal heirs. If the appellant was unaware of the existence of some of them, he ought to have made enquiries but it is more than clear that all the LRs. were not brought on record in the present proceeding. The other daughters were obviously not much concerned with the outcome of that appeal but the present applicant’s position is different in so far as, as a result of that compromise some of her property has been alienated and that too in the course of a judl. proceeding. It is quite basic and quite elementary and one does not need to restate the principles of natural justice because in this case there was a direct obligation on the part of the applt. to have made the present applicant a party to that appeal after the death of her father. The applicant’s learned advocate had also relied on the provision of Section 19 of the Hindu Succession Act because he submitted that on the death of Kalappa Reddy, quite apart from the status of the present applicant, that all the legal heirs would be relegated to the position of tenants in common or in other words they being the co-sharers of the estate, and that therefore whichever way one views the matter, the appeal could not have been disposed of without having cited the present applicant as a legal heir in the appeal. 1 do not have to recount that the non-citing of a necessary party has fatal consequences and in these circumstances, it is unnecessary for me to go into the reasons as to why the applicant was not shown as a party deft, but the court wilt have to hold that it was necessary on the part, of the applt. to have cited her at that point of time. Certain reaons have been put forward at the Bar and even if one were to accept those reasons namely that either the whereabouts or the existence of the applicant at that point of time were known to the appellant (sic) under the impression that the widow and the two sons

were the only persons who substantially represented the interest of deceased Gurappa Reddy, the fact would still remain that it was obligatory to have made all the LRs. parties. To my mind, such a situation is not foreign to the conduct of litigation and if the widow and
the brothers who were represented before the Court had been asked, the particulars of the remaining LRs. could easily have been ascertained. It was therefore an error not to have cited them and to my mind, since the law virtually insists on the citing of the LRs. it would be equally improper for a court to uphold the view that one or more of them can adopt fresh proceedings and therefore drive them to one more round of composite litigation when a far more expeditious remedy is available by directing that they should be made parties, hearing them and disposing of the appeal.

16. The overriding consideration in cases of review, as has been repeatedly emphasised in judicial decisions more so in the cases referred to by me earlier is that the aspect of doing complete justice is predominant. In these circumstances, to my mind, it would be equally harsh not only to the present applicant but to the respts. if the Court were to reject the present application and permit an obvious restart of the entire litigation. It is for this restricted reason, that on the facts of the present case and that too only because the citing of the present applicant was obligatory in the original proceeding, that I am inclined to hold that the existence of an alternate remedy shall not be treated as a bar to the
granting of a relief in the present review petition.

17. At this stge, however, I do need to refer to one other aspect of the matter which has been recounted. The Court cannot and should not presume that if the present applicant had been a party before the Court, that the present compromise would not have been entered into. I do see considerable justification in the statements made at the Bar that where with certain foresight parties and their learned advocates decide to resolve the matter in a particular manner merely because a post mortem is done and some criticism is possible, it does not ipso facto mean that the entire process was wrong or unwarranted. To this extent therefore, though the review petition succeeds it will be necessary to prefix it with a certain additional order.

17A. The review petition is allowed and the final order passed on the basis of the compromise tendered to the Court is set aside. The matter shall however be reopened precisely at that point for a special reason. The applicant is already before the Court and is represented and it will only be necessary for the appellant to serve notice on the remaining LRs. who are permitted to be impleaded informing them of the fact that the Court proposes to hear the appeal. The parties shall be at liberty to make their submissions on the fairness and validity or otherwise of the compromise. If the Court is satisfied that there are valid grounds not to permit that compromise, it shall then be open to the parties to make their submissions on merits. While passing this order, 1 do need to lake cognizance of the fact that the present applicant must be given an opportunity of making her submissions with regard to the formula on the basis of which the appeal came to be disposed of which includes the fairness and legality thereof. To my mind, it would not be possible to uphold the view, that the applicant was precluded from having taken part in those proceedings on her own though on strict construction of the law, a primary obligation as indicated by me rested on the appellant. It is for this reason therefore that the matter is reopened and the applicant is given an opportunity of making her submissions with regard to the aspect of the compromise formula. I do need to however clarify that if she satisfies the Court that the compromise is not in the interest of the parties and that it is an unfair arrangement, it shall certainly be open for her to make her submissions with regard to the merits of the appeal thereafter.

 18.    The review    petition     accordingly succeeds and is allowed. In the circumstances of the case, there shall be no order as to costs.  I have already had occasion to refer to the high degree of industry and professional

competence displayed by the three learned advocates who argued this matter and before parting with the judgment, I only need to hope that in these days of falling professional standards, they will inculcate these qualities in their other junior colleagues at the Bar. This is an old litigation. The appellant's learned advocate to complete the necessary formalities within a period of four weeks by amending the cause title and by ensuring that all the legal heirs in OS. 3939/83 are brought on record in this appeal. As soon as this formality is completed, the learned advocates are granted the liberty to have the matter placed before the Court hearing R.F. As. with a request that in the circumstances of this case, the same be taken up and disposed of. 
 

 19. Order accordingly.  

 


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